Killing in Your Name: Pathology of Judicial Paternalism and the Mutation of the “Most Serious Crimes” Requirement in Taiwan

Kuo, Ming-Sung; Chen, Hui-Wen

doi:10.1007/978-981-13-0350-0_19

Ming-Sung Kuo⁵ &
Hui-Wen Chen⁵

Part of the book series: Economics, Law, and Institutions in Asia Pacific ((ELIAP))

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Abstract

Although Article 6 of the International Covenant on Civil and Political Rights (ICCPR) falls short of banning the death penalty outright, it provides for substantive and procedural requirements aimed at limiting imposition of the death penalty before its abolition. Among them is the restriction on the “most serious crimes” in jurisdictions where the death penalty remains lawful (ICCPR Article 6 (2)). Drawing on the case law of the Taiwanese Supreme Court (TSC), this chapter aims to shed socio-legal light on the role that the “most serious crimes” requirement has played in judicial rulings concerning the death penalty since the ICCPR rights became enforceable in Taiwan on 10 December 2009. It is argued that in its translation into Taiwanese judicial practice, the “most serious crimes” requirement has been read together with the domestic legal provision for individualized aggravating and mitigating circumstances under the rubric of rehabilitatibility (教化可能性), deviating from the jurisprudence of the UN human rights bodies. Under the judge-civilizer tradition prevalent in the Taiwanese judiciary, the idea of rehabilitatibility has eventually turned the judicial deliberation on whether to impose the death penalty into a valuation of the worth of the defendant’s life, with a focus on the discovery of the incorrigible offender. With its absorption into the individualizing idea of rehabilitatibility, the “most serious crimes” requirement of the ICCPR has thus become part of the pathology of judicial paternalism, suggesting a mutation of international human rights ideals in Taiwan.

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Notes

1.
Statutory adoption here refers to the citation to the ICCPR and the ICESCR in Taiwan’s ICCPR and ICESCR Implementation Act of 2009, without taking a stance as to whether the ICCPR and the ICESCR have been duly ratified in terms of international law or given direct effect as ratified treaties in terms of Taiwanese domestic treaty law.
2.
Hood and Hoyle (2008), pp. 21–22.
3.
The ICCPR and ICESCR Implementation Act, which put the domestic application of the ICCPR and the ICESCR on a statutory basis, was promulgated on 22 Apr 2009 but did not come into force until 10 Dec 2009.
4.
See, e.g., Liao (2014), p. 927.
5.
See generally Wang (2011).
6.
See generally Kim and LeBlang (1975); cf. Cheng (1948), p. 463. For the role of capital punishment and law enforcement in medieval Europe, see Foucault (1990), pp. 137–138; Garland (2001), p. 29.
7.
Wang (2002), pp. 537–538.
8.
Peng (1973), pp. 163–168; see also Yeh (2016), pp. 28–38.
9.
Hsu (2006), p. 31; cf. Johnson and Zimring (2009), pp. 197–199.
10.
Garland (2001), pp. 142–145. For a discussion on how the idea of the incorrigible offender has been tied to modern penological policies under both totalitarian regimes and liberal democracies, see, e.g., Eghigian (2015). How the idea of the incorrigible offender plays out in Taiwanese judicial rulings on the death penalty will be further discussed in Sects. 3 and 4.
11.
According to Professor Jaw-Perng Wang (2011), p. 146, over fifty different offenses still required mandatory imposition of the death penalty in the 1990s. The term “killing leviathan” is an adaptation of what Austin Sarat observes in the United States as a “killing state.” Sarat (2001), p. 46.
12.
For the retributivist character of Chinese traditional criminal law, see Cheng (1948), p. 468.
13.
Wang (2002), pp. 532–535.
14.
Id., at pp. 538–539. The martial-law decree was lifted in 1987, ending the prosecution of civilian crimes under the Military Criminal Code.
15.
For a balanced, brief discussion of the relationship between the emergence of Enlightenment humanitarianism and the abolition movement in Western history, see Shoemaker (2001), pp. 19–27; cf. Foucault (1990), p. 138.
16.
Hood and Hoyle (2008), pp. 90–91.
17.
For a discussion of how the draft Human Rights Law Bill lost political momentum, see generally Kuo and Chen (forthcoming).
18.
Wang (2011), p. 147.
19.
According to Professor Jaw-Perng Wang, out of the ninety-three death sentences in the period 2000–2009, only three were imposed on non-homicidal crimes. Moreover, those three outliers occurred before 2002. Id., at p. 162.
20.
See Hsu (2006), p. 33; cf. Lo (2006), p. 57; Jan (1988). For the linkage of the rehabilitative ideal and modernity, see Garland (2001), pp. 40–41.
21.
Hsu (2006), p. 33.
22.
E.g., Hsieh Y-h et al. v. Republic of China, 105 Tai Shang Zi Di 1856 Hao Panjue [105 台上字第 1856 號判決] (Supreme Ct. [最高法院刑事庭] 27 July 2016) (Taiwan).
23.
It has been noted that the rehabilitative ideal in Western history has pointed in the direction of abolition. Hammel (2010), pp. 173–175; cf. Eghigian (2015), p. 49.
24.
Hsieh (2013), p. 10.
25.
Id., at pp. 12–13.
26.
Chang (2012), pp. 22–23.
27.
In the ratio decidendi, the TCC refers to Article 14 of the ICCPR. Da Fa Guan Shi Zi Di 582 Hao [大法官釋字第582號] (J.Y. Interpretation No. 582) (23 July 2004) (R.O.C.). http://www.judicial.gov.tw/constitutionalcourt/EN/p03_01.asp?expno=582. Accessed 25 Oct 2017.
28.
It has been argued that Article 6 of the ICCPR has enhanced the procedural rules in cases of the death penalty to the extent that the TSC has held oral hearings for those cases more often than it did prior to the statutory adoption of the ICCPR. Cf. Hsieh (2013), p. 10. That may be true. Yet, it is hard to establish the causation between the increasing frequency of the TSC’s holding of oral hearings and the adoption of the ICCPR, as the TSC rarely explained why it granted a request for oral hearings in its rulings.
29.
Alston (2007), paras 44–47.
30.
Hood and Hoyle (2008), pp. 130–131. It should be noted that with respect to the dynamic interpretation of the “most serious crimes” requirement, the body of law comprises statements, resolutions, communications, and other documents issued or adopted by various institutions. Among the institutional co-interpreters of the ICCPR are the UN Economic and Social Council, the Human Rights Council (replacing the Commission on Human Rights), the Human Rights Committee, the UN General Assembly as well as the Secretary-General (through reports by several Special Rapporteurs).
31.
This is indicated in paragraph 1 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (Safeguards), which was adopted by a resolution of the Economic and Social Council of the United Nations. Id., at p. 131; see also Id., at pp. 21–22 (discussing GA Resolutions 28/57 (1971) and 32/61 (1977). Notably, failing to recognize the unique dynamic process of how international law and the ICCPR in particular have developed and mistaking the Human Rights Committee as the ICCPR treaty body for the authoritative interpreter of the ICCPR, the TSC in Peng C-y v. Republic of China, 103 Tai Shang Zi Di 3062 Hao Panjue [103 台上字第 3062 號判決] (Supreme Ct. [最高法院刑事庭] 2 Sept 2014) (Taiwan) dismissed the relevance of the foregoing Safeguards outright for they were not issued by the Human Rights Committee.
32.
Id., at pp. 131–132.
33.
Id., at p. 131.
34.
Alston (2007), paras 53, 65.
35.
Id., at para 55.
36.
Id.
37.
Id., at paras 54–55.
38.
In a different context, Justice Stevens of the United States Supreme Court noted that “[s]erious as this defendant’s crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible,” suggesting the distinction between the determination of the crimes and the individualized sentencing. Harmelin v. Michigan, 501 U.S. 957, 1028 (1991) (Stevens J, dissenting).
39.
Criminal Code of the Republic of China, art. 57 (2016), http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=C0000001. Accessed 25 Oct 2017 [hereinafter the Criminal Code].
Sentencing shall be based on the liability of the offender and take into account all the circumstances, and special attention shall be given to the following items:
¹The motive and purpose of the offence.
²The stimulation perceived at the moment of committing the offence.
³The means used for the committing of the offence.
⁴The offender’s living conditions.
⁵The disposition of the offender.
⁶The education and intelligence of the offender.
⁷Relationship between the offender and the victim.
⁸The seriousness of the offender’s obligation violation.
⁹The danger or damage caused by the offence.
¹⁰The offender’s attitude after committing the offence.
40.
Article 271 of the Criminal Code fails to make such a distinction.
41.
X v. Republic of China, 102 Tai Shang Zi Di 5251 Hao Panjue [102 台上字第 5251 號判決] (Supreme Ct. [最高法院刑事庭] 30 Dec 2013) (Taiwan) is exemplar of the absorption of the “most serious crimes” requirement into the individualized sentencing criteria under Article 57 of the Criminal Code. See also Chen C-f v. Republic of China, 104, Tai Shang Zi Di 1171 Hao Panjue [104 台上字第 1171 號判決] (Supreme Ct. [最高法院刑事庭] 30 Apr 2015) (Taiwan). A caveat to the method is due. Although the analysis of the judicial approach to the “most serious crimes” requirement in this chapter is based on the canvassing of TSC case law in the database of the Taiwan Judicial Yuan with the keywords covenant (公約), death penalty (死刑), and rehabilitation (教化), this chapter focuses on the issues indicated in individual cases without claiming to present the gestalt of TSC case law concerning the death sentence.
42.
E.g., X v. Republic of China, 105 Tai Shang Zi Di 2337 Hao Panjue [105 台上字第 2337 號判決] (Supreme Ct. [最高法院刑事庭] 14 Sept 2016) (Taiwan) [hereinafter 105 Tai-Shang No. 2337].
43.
Cheng C v. Republic of China, 105 Tai Shang Zi Di 984 Hao Panjue [105 台上字第 984 號判決] (Supreme Ct. [最高法院刑事庭] 22 Apr 2016) (Taiwan), which resulted from a murder case concerning a stabbing frenzy on a Taipei underground train in 2014, is an outlier. The convict Cheng Chieh (鄭捷) was sentenced to death based on the theory of just deserts and the TSC rejected the request for a psychiatric evaluation of the convict’s rehabilitatibility.
44.
Under Taiwanese law, life imprisonment means indefinite imprisonment with a sentence of twenty-five years. Criminal Code, art. 77.
45.
E.g., 105 Tai-Shang No. 2337.
46.
See Packer (1964), pp. 1080–1081 (discussing incapacitation and rehabilitation as parts of the individualizing trend in punishment).
47.
It is noteworthy that in the cases where the death sentence was upheld, the TSC did respond to whether the particular crime before it constituted one of the “most serious crimes” in the affirmative, whereas in those rulings in which the convicts were saved from the death penalty, the “most serious crimes” requirement was mentioned but left unaddressed. See, e.g., X v. Republic of China, 105 Tai Shang Zi Di 3424 Hao Panjue [105 台上字第 3424 號判決] (Supreme Ct. [最高法院刑事庭] 28 Dec 2016) (Taiwan).
48.
Preamble to the ICCPR. See McCrudden (2008), pp. 656, 669.
49.
Garland (2001), pp. 34–40.
50.
Brindley (2015), pp. 117–118.
51.
This paralleled the civilization-annihilation dialectic in the Spanish conquest of America. For an excellent analysis of that dialectic, see generally Todorov (1984); see also Fitzpatrick (2001), pp. 153–161.
52.
Hsieh (2013), p. 13; cf. Bottoms (1983), p. 179.
53.
For the moralistic character of atonement, see Eddy and Beilby (2006), p. 18.
54.
Cf. Shapiro (1981), pp. 191–192.
55.
Yeh (2016), pp. 208–213.
56.
See, e.g., West (1990) (regarding judicial paternalism as judicial regulation or mitigation of private desires/ preferences for social interest); Daly (1989) (discussing judicial paternalism in the context of gendered relations); Sefton-Green (2011) (associating judicial paternalism with solidarity in the pursuit of social justice).
57.
Da Fa Guan Shi Zi Di 656 Hao [大法官釋字第 656 號] (J.Y. Interpretation No. 656) (3 Apr 2009) (R.O.C.).
58.
Yeh (2015), pp. 32–33; see also Chang et al. (2014), pp. 738–739; cf. van Dijck (2017) and Choi (2000). For a critique, see generally Smith (2014).
59.
Cf. Kobiel (2007), pp. 48–49.
60.
See generally Sarat and Shoemaker (2011).
61.
See generally Bauman (1989).
62.
Eghigian (2015), pp. 49–52.
63.
Id., at p. 51.

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Acknowledgments

This article is part of the results of the research project “Unmoored from International Legality: Rights Internationalism and Taiwan’s Embrace of International Human Rights Law” that Dr Ming-Sung Kuo has conducted under the auspices of the Chiang Ching-kuo Foundation for International Scholarly Exchange (Project Number: RG005-U-15).

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University of Warwick School of Law, Coventry, UK
Ming-Sung Kuo & Hui-Wen Chen

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U.S.-Asia Law Institute, New York University, New York, NY, USA
Jerome A. Cohen
Harvard Law School, Cambridge, MA, USA
William P. Alford
Constitutional Court, Taipei, Taiwan, Taiwan
Chang-fa Lo

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Kuo, MS., Chen, HW. (2019). Killing in Your Name: Pathology of Judicial Paternalism and the Mutation of the “Most Serious Crimes” Requirement in Taiwan. In: Cohen, J., Alford, W., Lo, Cf. (eds) Taiwan and International Human Rights. Economics, Law, and Institutions in Asia Pacific. Springer, Singapore. https://doi.org/10.1007/978-981-13-0350-0_19

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DOI: https://doi.org/10.1007/978-981-13-0350-0_19
Published: 17 May 2019
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